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Probate and WIll Issues

A will is a written instrument, signed by the decedent and at least two witnesses in each others presence, that fulfills the requirements of Florida law. A will names the beneficiaries for the testator’s probate assets. The testator can also designate guardians for minor children and a personal representative to administer the estate. If a will was validly executed in another state, Florida courts will recognize the document as a will except in the case of a holographic will. Holographic wills are wills written entirely in the testators own handwriting and in most states witness signatures are not required. However, Florida law requires that holographic wills be witnessed and signed in the same manner as any other Florida will.

What if there is not a Florida will?

In Florida if someone dies without a valid will they are said to have died ‘intestate’. If they have a will when they die, they die ‘testate’. If a person dies without a will, Florida statutes direct how their assets will be distributed based on whether the decedent had a spouse, children, children from outside the marriage, parents, siblings and so on. If a person dies without a will or any living relatives then his or her property will escheat to the state (become the property of the state).
If a person dies intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority:

a) If the decedent was survived by a spouse but was not survived by any lineal descendants, the surviving spouse receives all of the decedent’s estate.
b) If the decedent was survived by a spouse and was survived by one or more lineal descendants (all of whom are the descendants of both the decedent and his or her spouse), the surviving spouse receives the entire intestate estate.
c) If the decedent was survived by a spouse and survived by one or more lineal descendants (at least one of whom is not also a lineal descendant of the surviving spouse), the surviving spouse receives one-half of the probate assets, and the decedent’s lineal descendants share the remaining half.
d) If the decedent was not married at his or her death but was survived by one or more of his or her lineal descendants, those descendants will receive all of the decedent’s estate. If there is more than one lineal descendant, the decedent’s estate will be divided among them ‘per stirpes’ which is the manner prescribed by Florida law. The easiest way to understand per stirpes is to divide the assets at the first generational level where there is a survivor. If any of those individuals pre-deceased the decedent, their share will be split between their descendants, if any. If there are no surviving descendants, their share will not be counted when making the division between their siblings. Basically if you predecease your parents, your children will divide your share of your parent’s estate. If you have no children or descendants, your share will go to your siblings.
e) If the decedent was not married at his or her death and had no surviving lineal descendants, the decedent’s probate assets will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters if living, otherwise to the decedent’s nieces and nephews.
f) Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

Do I need the original Will in Florida?

In Florida only an original will can be admitted to the court unless there are extenuating circumstances.

What happens if I cannot find the original Will?

A Will that cannot be found that was last seen in the hands of the testator is presumed to have been destroyed by the decedent. If a will has been destroyed by the decedent it is presumed that the decedent intended to revoke the will. It is possible to admit a copy when the original cannot be found and people can testify to its validity. This process is not guaranteed because you have to overcome the presumption that the testator destroyed the will intentionally.

Is a Will valid in Florida?

In order for a will to be admitted to court, it must be a validly executed will under the statutes governing Wills. For a Florida will to be valid, it must be signed at the end by the testator and two witnesses, who each in the presence of the other witness the testator’s signature. It is not necessary that the testator sign their name, an X is sufficient. If the will was validly created in another state, Florida Courts will generally recognize the will.

If you are having problems getting a copy of a will or would like your Florida will reviewed to make sure it is valid and does what you want, you should contact a Florida Estate Planning Lawyer to discuss your situation.

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